USING EAD/AP WITH H-1B STATUS

Many H-1B visa holders apply for adjustment of status but face a significant waiting period before they receive their green cards. This article examines the practicality of maintaining H-1B status versus using separate work/travel authorization.

WILL I LOSE MY H-1B STATUS IF I RE-ENTER THE U.S. USING MY ADVANCE PAROLE (AP) TRAVEL DOCUMENT WHILE MY ADJUSTMENT OF STATUS APPLICATION IS PENDING?

We are still waiting for USCIS to issue a final rule to clarify this issue. Currently, if you have an approved, valid Advance Parole travel document, you may use it to re-enter the U.S. while your Adjustment of Status Application is pending, instead of re-entering on your H-1B visa. However, there are several benefits and disadvantages to consider before utilizing Advance Parole.

Benefits of traveling on AP

You do not have to apply for a new H-1B visa stamp, which is a convenient way to avoid the time-consuming visa process at a U.S. Consulate.

You will remain eligible to be employed by your H-1B sponsor, and may apply for H-1B extensions as necessary.

Precautions for traveling on AP

If you re-enter the U.S. on AP, you will technically no longer be in H-1B status. Your dependents will also be unable to be admitted in H-4 nonimmigrant status. Many adjustment of status applicants without a visa status report difficulty procuring certain benefits, such as getting a driver’s license.

AP travelers may be questioned about the basis for their work authorization. When questioned, they may either present their EADs or H-1B documents. Note that not all officers understand that individuals can travel on AP and still remain work authorized pursuant to underlying H-1B status.

An advantage of re-entering with H-1B status is that you will retain a lawful visa status in the event that your adjustment of status (permanent residence) application is denied. If the adjustment application is denied, based on an earlier status violation or another eligibility ground, the EAD and AP will be automatically terminated, and you will need to leave the US.

Another advantage of re-entering with H-1B status is that it will trigger Sec 245K protection, which essentially forgives you for previous status violations. Entry with AP does not trigger this protection. This is because for Sec.245K purposes, entry with Advance Parole is not an “admission”, but entry in H-1B status is an admission. An admission is required to trigger the 180 days of adjustment of status “protection” that Sec.245K offers. Also, Advance Parole entrants may not be eligible for change of status to a new visa classification. For more details, please see this memo: Michael Cronin Memo

Entry with Advance Parole documents also means that you could be placed into secondary inspection when you arrive at the airport. You should be prepared for that extra wait if you choose to enter with your AP documents instead of your H-1B visa.

Finally, Advance Parole entrants may not be eligible to utilize the portability provisions of the H-1B visa (to change employers upon the filing of a new H-1B).

When traveling, we recommend carrying a copy of your I-485, Adjustment of Status receipt notice, as well as your H-1B approval notice and recent pay stubs with you when you travel. To use AP to re-enter, the AP application must be approved before you depart the US.

ARE PUERTO RICO, GUAM, AND THE US VIRGIN ISLANDS CONSIDERED PART OF THE US?

Yes. Since they are part of the US, travel to and from these areas does not require a formal “admission.” However, there are many CBP officers at these airports and they may ask about your status.

CAN AN H-1B STAMP FROM A PREVIOUS EMPLOYER BE USED TO RE-ENTER THE US?

Yes, if you have a valid visa stamp from your previous employer, and your terms of employment with your current H-1B sponsor have not been violated.

WHAT HAPPENS IF I TRAVEL WHILE MY CHANGE OF STATUS APPLICATION IS PENDING?

The change of status application is automatically terminated. However, an extension of status application remains valid even if you travel abroad. If you travel while an extension petition is pending, and you re-enter with your “old” I-797 approval notice, the extension may be voided and you will be limited to the term of your old petition.

Curran & Berger LLP

79 Masonic Street
Northampton, MA 01060

We also meet with clients on an as-needed basis at satellite offices in Cambridge, MA

General Inquiries

Our firm assists individuals and institutions across the U.S. with their immigration needs.